Court File and Parties

Court File No.: FS-17-0039802 Date: 2022 03 21 Superior Court of Justice - Ontario

Re: Vanessa Shea, Applicant And: Robin Shea, Respondent

Before: Chozik J.

Counsel: J. Stanchieri, counsel for the Applicant R. Tsao, counsel for the Respondent and for Carol Shea, Estate Trustee and Miriam Shea, a proposed party

Heard: October 27, 2021

Ruling on Motions

1These motions were for an interim Order to establish the primary residence and day to day decision-making authority in respect of the parties’ 12 year old daughter, Roxanna. Roxanna was in the Respondent’s (“Robin”) primary care when he died suddenly on August 14, 2021. Since then, she has been in the care of her paternal aunts without a court Order.

2The Applicant (“Vanessa”) is Roxanna’s mother. At the time of Robin’s death, Roxanna had no contact with Vanessa. The mother and child have been estranged, on and off, since 2019.

3By way of a Notice of Motion dated October 19, 2021, Vanessa sought an Order that she have primary care and sole decision-making responsibility with respect to Roxanna and that the return of the child be police-enforced. She also sought an Order that Lourdes Geraldo, a therapist who has a Master’s in Social Work, provide intensive reconciliation therapy for her and Roxanna, and that supervision of her parenting time cease.

4As directed by Justice Kurz, Miriam Shea (“Miriam”), one of Robin’s six sisters, brought a motion requesting to be added a Respondent to this action and sought a temporary Order for primary residence and day to day decision-making with respect to Roxanna.

5Following the hearing of these motions, in a brief Endorsement dated October 27, 2021, I dismissed Vanessa’s motion and allowed Miriam’s cross-motion. I ordered that Miriam be added as a party to this action pursuant to s. 21(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).

[6] On a temporary basis, I ordered that: a. Roxanna reside with Miriam at Miriam’s home in Oakville and that Miriam have day to day decision-making authority for Roxanna; b. Roxanna continue to attend her current school in Oakville and that costs of this school be paid by the Estate of Robin Shea; c. Roxanna continue to receive individual therapy/counselling from Dr. Christina Ricciuti, psychologist, and that the costs of the therapy be paid by the Estate of Robin Shea; d. Roxanna have parenting time with Vanessa up to two times per week for three hours, on a supervised basis, with the costs of such supervision to be paid by Vanessa; and e. A Voice of the Child Report be requested.

7With the consent of the parties, I made an Order that Carol Shea (“Carol”), another of Robin’s sisters, continue the relief claimed by Robin in his Form 10 Answer in her capacity as Estate Trustee pursuant to section 7(2) of the Family Law Act, R.S.O. 1990, c. F.3, and rule 4(5) of the Family Law Rules, O. Reg. 114/99.

8At the direction of Justice Kurz, these motions proceeded on a regular motion list, where oral argument is limited to under 60 minutes. The parties prepared and filed nearly 1000 pages of material.

9To assist the court, and with leave granted by Justice Emery in an Endorsement dated October 6, 2021, the parties prepared and filed with the court office paper copies of the voluminous materials. The paper copies of the materials were not forwarded to me prior to the hearing of the motion. I have since obtained and had the benefit of those materials in preparing these Reasons. These paper copies were of great assistance to me and the extra effort by counsel to prepare them is much appreciated.

[10] In addition to the Notices of Motions, the materials on these motions included the following: a. Affidavit of Vanessa Shea, Form 14A, sworn September 24, 2021; b. Affidavit of Dr. Szkiba-Day, Form 14A, sworn September 2, 2021; c. Affidavit of Dr. Szkiba-Day, Form 14A, sworn September 23, 2021; d. Affidavit of Dr. Arani, Form 14A, sworn September 23, 2021; e. Affidavit of Lourdes Geraldo, Form 14A, sworn September 23, 2021; f. Affidavit of Vanessa Shea, Form 31.1, sworn September 30, 2021; g. Affidavit of Vanessa Shea, Form 14A, sworn September 30, 2021; h. Affidavit of Vanessa Shea, Form 14A, sworn October 5, 2021; i. Affidavit of Vanessa Shea, Form 14A, sworn October 22, 2021; j. Affidavit of Carol Shea, Form 14A, sworn September 24, 2021; k. Affidavit of Miriam Shea, Form 14A, sworn September 24, 2021; l. Affidavit of Miriam Shea, Form 35.1, sworn September 24, 2021; m. Signed Children’s Aid Society Authorization of Miriam Shea, September 24, 2021; n. Affidavit of Miriam Shea, Form 14A, sworn September 30, 2021; o. Affidavit of Helen Fryfogel, Form 14A, sworn October 5, 2021, including the Brayden Supervision note for September 26 and October 3, 2021; p. Section 30 Custody and Access Assessment, Parenting Plan Recommendations of Howard Hurwitz dated January 8, 2021 (129 pages, including the psychological reports of Dr. Fitzgerald dated October 12, 2020, of both Robin and Vanessa Shea); q. Brayden Supervision notes dated October 17, 19, and 24, 2021 filed on consent at the hearing of the motions (Exhibit 1 on the motions); r. The Applicant’s written submissions; s. The Applicant’s factum.

11In the Endorsement I released on October 27, 2021, I indicated that the Reasons for the decision would follow. These are those Reasons.

Background

12The litigation between Robin and Vanessa has been extensive and acrimonious, both with respect to parenting of Roxanna and financial issues between the parties. It is neither necessary nor helpful to set out the history here. I recite only those facts which are necessary for context.

13Vanessa and Robin met in 2004. They married on August 29, 2008. Vanessa has two other children, Max (now 23) and Alex (now 20), from a prior marriage. Roxanna was born in 2009.

14Robin and Vanessa separated on February 18, 2017 when Vanessa moved out of the matrimonial home.

15For a time, an equal-time, shared parenting schedule was in place in respect of Roxanna.

16In 2019, the shared parenting arrangement ended. After a trip to Scotland with Vanessa, Roxanna refused to continue to have contact with her. Roxanna alleged that Vanessa had assaulted her during that trip. Roxanna then resided exclusively with Robin. From August 2019 until December 2020, Roxanna had no parenting time with Vanessa. From August 2019 until Robin’s passing in August 2021, Roxanna lived exclusively with Robin at the matrimonial home in Burlington (“the farm”).

17Vanessa denied Roxanna’s assault allegations. Vanessa claims that Roxanna’s attitude and behaviour towards her is the result of parental alienation by Robin. She maintained this claim before me on these motions and extended it to include Robin’s sisters.

Section 30 Assessment

18In June 2020, I made an Order for a s. 30 assessment under the CLRA. Howard Hurwitz conducted this assessment and prepared a 129-page report. The assessment included psychological testing and reports of Dr. Daniel Fitzgerald in respect of Vanessa and Robin. The report and the recommendations were presented to the parties in December 2020.

19Mr. Hurwitz found that, contrary to Vanessa’s claims, her estrangement was justified and not the product of alienation. He concluded that Roxanna did not meet the clinical criteria for parental alienation. He recommended that Robin have sole custody, primary residence, and final decision-making authority with respect to Roxanna.

20Mr. Hurwitz also recommended that efforts be made to rebuild Roxanna’s relationship with Vanessa. To this end, he recommended that Roxanna begin supervised visits with Vanessa, and that, over the course of six months, those visits increase from a few hours on Saturdays, to possibly alternating weekends.

21Roxanna began having weekly supervised parenting time with Vanessa on December 22, 2020, almost immediately after the presentation of the report to the parties. There were 16 such sessions between December 22, 2020 and May 23, 2021, when Vanessa terminated them. These visits were supervised by Brayden Supervision. The supervisors’ notes of all the sessions are in evidence before me. Most of the visits took place at Vanessa’s home. Mother and daughter spent time doing arts and crafts, playing games, and baking. They laughed and talked. The visits were largely positive prior to May 2, 2021.

Parenting Sessions on May 2 and 23, 2021

22At the conclusion of the visit on May 2, 2021, Vanessa asked Roxanna if she wanted to spend more time with her. Roxanna said, “No, I like Sundays” (the weekly visits were taking place on Sundays). Vanessa asked Roxanna how they could go back to a mother/daughter relationship if they only saw each other once a week. Vanessa asked Roxanna if she wanted anything else out of the relationship or just a “playmate” on Sundays. Roxanna said: “Not right now, I don’t feel comfortable with anything else.” When Vanessa tried to discuss this further, Roxanna repeated that she did not feel comfortable. Roxanna became teary and asked to leave.

23Vanessa then said to Roxanna: “You think something happened that didn’t and it’s creepy you don’t want anything more.” As Roxanna and the supervisor were leaving Vanessa asked Roxanna four more times if she wanted to spend more time with her. Roxanna declined each time. Vanessa then said: “One day you will regret the damage you caused.” Roxanna replied: “You caused the damage.”

24At the following visit, on May 23, 2021, Roxanna and Vanessa met on the usual park bench. According to the supervisor’s notes, Roxanna told Vanessa that she felt “stressed out” from the last visit. Roxanna told Vanessa that, when she wants to leave, she wants to be able to do so without having to repeat the request. Roxanna told Vanessa that she did not feel safe and was stressed because Vanessa raised her voice and called her a liar at the last visit. Roxanna told Vanessa that the last comment in particular, about her causing damage, made her feel unsafe.

25Vanessa told Roxanna that she disagreed. She denied calling Roxanna a liar. Vanessa was holding a piece of paper towards Roxanna and said something to the effect that “not talking is causing damage” was written on the paper. Vanessa began to cry and told Roxanna she did not feel safe and “cannot do this.” Vanessa then stood up and walked away, leaving Roxanna sitting on the bench. This visit was just 13 minutes. At the time, Roxanna was 11 years old.

26Vanessa then had no contact with Roxanna from May 23, 2021 until after Robin died.

Robin’s Death

27On Friday, August 13, 2021, Roxanna went to sleep over at a friend’s house. When she could not reach Robin, she called and texted Miriam and Nancy Shea (“Nancy”). Miriam and Nancy went to the farm and discovered Robin’s body.

28Robin was 59 years old when he died. He is survived by six sisters: Lori Fiala (66), Cathy Shea (65), Barbara Shea (63), Carol (60), Miriam (58), and Nancy (56).

29Vanessa was notified of Robin’s death, through counsel, on Monday, August 16, 2021. She immediately moved back to the farm though she had not lived there since March 2017. Since then, Roxanna has refused to go to the farm or live with Vanessa. Miriam and Nancy, with whom she had been staying, assumed care of Roxanna.

30The matter came before Justice Kurz on September 14, 2021 for a case conference. He is the assigned case management judge. Justice Kurz made an Order that, amongst other things, the supervised visits between Roxanna and Vanessa resume and take place twice a week pending the return of the motions. At Vanessa’s request, he also ordered Roxanna have a session alone with Dr. Jean Szkiba-Day, who had in the past provided family therapy for the parties and reunification therapy for Vanessa and Roxanna. He ordered that the notes of that session be released to both parties.

31Roxanna then had five supervised parenting visits with Vanessa: September 16, 21, October 17, 19, and 24, 2021. Vanessa concedes that those visits did not go well. During those visits, Roxanna made clear that she did not want to either go to the farm so long as Vanessa is there or live with Vanessa. She was anxious about seeing her mother and believes negative things about her. She repeatedly asked for parenting time with Vanessa to be shorter. Roxanna also met with Dr. Szkiba-Day on September 17, 2021, as ordered by Justice Kurz. She has been participating in individual therapy with her therapist, Dr. Christina Ricciuti.

32After Robin’s death, Roxanna stayed with Miriam and Nancy, who live near each other in Oakville. Once school started in September 2021, Roxanna resumed her attendance at her regular school. In the first six weeks of school, she missed 12 days and was late 7 times. Miriam and Nancy made day to day decisions about Roxanna without a formal court Order until these motions were heard.

Positions of the Parties

33Vanessa takes the position that Roxanna must be returned to her care and residence immediately. She is now Roxanna’s only parent, and it is in Roxanna’s best interests to be with her. Vanessa wants Roxanna to resume living with her at the farm, or in the alternative, she says she will rent a hotel room. Vanessa argues for intensive reunification therapy with Lourdes Geraldo. This therapy would include Ms. Geraldo or her associate being in the home with Vanessa and Roxanna. Vanessa argues that intensive reunification therapy must start immediately. She argues that if Roxanna refuses to go with her, the police should enforce the Order.

34Vanessa submits that the court has insufficient information about Miriam and Nancy to make a proper assessment of their suitability as caregivers. She alleges that Miriam and Nancy are perpetuating the alienation engaged in by Robin. She argues that Miriam and Nancy fail to prioritize the repair of Roxanna’s relationship with Vanessa. They have no plan to address how quickly Roxanna would return to Vanessa’s care. They overemphasize Roxanna’s views and preferences, which according to Vanessa, are not independent and ought not be considered. She also alleges that Miriam and Nancy are motivated by greed: Robin left his estate, worth millions of dollars, to Roxanna, and Miriam and Nancy are using Roxanna as their “meal ticket”.

35Miriam, in her submissions, argues that Vanessa’s allegations against her and Nancy are unfounded. She, and Nancy, have a solid, supportive, loving, maternal and healthy relationship with Roxanna. Roxanna has a “safe place” with her. She and Nancy have acted in Roxanna’s best interests since Robin’s death and intend to continue to do so. Miriam submits that she is supportive of Roxanna’s relationship with Vanessa, but Roxanna is fearful of Vanessa.

36Miriam argues, in effect, that Roxanna’s individual therapy with Dr. Ricciuti, attendance at school, and engagement with friends and in extra-curricular activities is important for her well-being. She wants Roxanna to be happy and feel loved, safe, and secure. She advocates for Roxanna to have a voice in this court process.

Analysis

37The test to determine decision-making, primary residence, and parenting time is the best interests of the child: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16(1); CLRA, s. 24. The best interests test is the only test to be applied. Parental rights, interests, and preferences play no role in this determination: Young v. Young, [1993] 4 S.C.R. 3, at pp. 35-36, 44, 57, 117.

[38] The newly enacted section 16(2) of the Divorce Act explicitly requires that a court’s assessment of the best interests of the child give primary consideration to a child’s “physical, emotional and psychological safety, security and well-being.” The factors to be taken into account to determine a child’s best interest under s. 16(3) of the Divorce Act mirror those that are set out in s. 24(3) of the CLRA. Those factors in s. 16(3) include: a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other spouse; d) the history of care of the child; e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; g) any plans for the child’s care; h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child; j) any family violence and its impact on, among other things, i. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and ii. the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

39The list of factors contained in s. 16 of the Divorce Act and s. 24 of the CLRA is not an exhaustive list of considerations. All of the factors relevant to the specific case must be considered. Ultimately, the best interests of the child are paramount to the determination of decision-making responsibility, principal residence, and parenting time.

40In this case, having reviewed the extensive evidence adduced on this motion, including the findings and recommendations contained in the s. 30 assessment, the psychological reports prepared by Dr. Fitzgerald, the Brayden Supervision notes of all the visits, the affidavits and letters of Dr. Szkiba-Day and Dr. Ricciuti, I concluded that, on an interim basis, it is in Roxanna’s best interests that she reside primarily with Miriam and that Miriam be responsible for decision-making.

[41] I made this determination because I found that: a. Vanessa had no meaningful parenting role in respect of Roxanna in more than two years, since the summer of 2019. b. The Brayden Supervision notes establish that, while Vanessa’s interactions with Roxanna were largely positive from December 2020 to May 2021, since Vanessa terminated the visits on May 23, 2021 and Robin died, her relationship with Roxanna is even more strained than before. c. Roxanna has a solid, loving, supporting, and healthy relationship with Miriam and Nancy. d. Roxanna has strong and clear views and preferences: she does not want to live with Vanessa or spend a lot of time with her, but wants to repair the relationship with her mother gradually. I am satisfied that Roxanna’s views and preferences are not the product of alienation by Miriam or Nancy, and are justified on the objective evidence before me. Those views and preferences are entitled to considerable weight. e. I do not accept Dr. Szkiba-Day’s findings or opinions, expressed in her affidavits of September 2 and 23, 2021. I find that her findings and opinions are not supported by the evidence before me. In particular, her concern that Roxanna continues to be in a “loyalty bind” is without an evidentiary foundation. f. Having regard to the Brayden Supervision notes of the last seven visits, I find that Vanessa lacks insight into how her own behaviour impacts Roxanna. She is not attuned to and does not listen to Roxanna. My conclusions are supported by the findings of Mr. Hurwitz and Dr. Fitzgerald. Instead of examining her own conduct, Vanessa blames others, including Roxanna for those difficulties. g. Immediate intensive reunification counselling is not in Roxanna’s best interests at this time. In light of the trauma she has recently suffered – the loss of her father and her home with him – the priority must be Roxanna’s individual therapy and healing.

42Given all of the evidence, I have very serious concerns about Vanessa’s ability to meet Roxanna’s emotional and psychological needs at this time.

43On the other hand, I am satisfied that Miriam is able to provide Roxanna with a suitable, stable home and the understanding and emotional support Roxanna needs. While Roxanna did not have much of a relationship with Robin’s extended family during the parties’ marriage, since their separation Roxanna has, over the last four years, developed a close relationship with Miriam. She expresses that she is happy living with her aunt. She enjoys being part of a large extended family. Vanessa would not maintain those relationships.

44I am satisfied that Miriam has and will continue to encourage Roxanna’s relationship with Vanessa. I am satisfied that she prioritizes Roxanna’s needs. Miriam is sensitive to Roxanna’s grief. Miriam too lost her father at age 11. She also recently lost her son. Miriam has encouraged and sought out appropriate counselling for Roxanna with Dr. Ricciuti. Contrary to Vanessa’s allegations, neither Miriam nor Carol deliberately delayed court proceedings or made major decisions respecting Roxanna without seeking input from Vanessa. Having regard to all of the evidence, I concluded that it is in Roxanna’s best interests to reside primarily with Miriam on an interim basis and for Miriam to have day to day decision-making authority.

Concerns about Alienation

45Vanessa’s and Roxanna’s relationship has been strained since 2019. Vanessa maintains that this is solely the result of alienating behaviour engaged in by Robin, and now his sisters. Vanessa maintains that Roxanna’s views and preferences are not independent, and therefore not entitled to weight. I do not accept Vanessa’s arguments in this regard.

46In the s. 30 assessment, Mr. Hurwitz concluded that there was no evidence of parental alienation. He concluded that Roxanna does not demonstrate the clinical features of a child who has experienced alienation. He found that Roxanna wants to have a positive relationship with Vanessa but feels unable to. Mr. Hurwitz observed that Roxanna is hurt by a variety of behaviours that she sees in how Vanessa treats her. Mr. Hurwitz recommended Vanessa participate in the Triple P parenting program online and that Roxanna commence weekly supervised parenting time with Vanessa from 12 noon to 3 p.m. on either Saturdays or Sundays from January until June 30, 2021. He stated that mother and child need clinical support to assist them to work through the difficulties in their relationship.

47I am mindful that the views and conclusions expressed in a s. 30 assessment are not binding on a court. The court must not abandon its decision-making role to an assessor and is under no obligation to accept the report or its recommendations: D’Angelo v. Barrett, 2016 ONCA 605, at para. 8; Knapp v. Knapp, 2021 ONCA 305, 155 O.R. (3d) 721, at para. 20. A s. 30 assessment is simply evidence, albeit important evidence, in this regard.

48I am also mindful that, at an interim motion, the s. 30 assessment has not yet been tested through cross-examination. While I may rely on the evidence contained in the assessment, the recommendations and conclusions made in the assessment must be approached with caution: Batsinda v. Batsinda, 2013 ONSC 7869, at paras. 22 and 32.

49Vanessa argued on this motion that the s. 30 assessment was flawed. She cites multiple alleged factual inaccuracies, including that Mr. Hurwitz misstated and misapprehended what Dr. Szkiba-Day told him. She relies on an affidavit from Dr. Szkiba-Day, in which Dr. Szkiba-Day criticizes the assessment and sets out one particular topic that was misrepresented.

50The weight to be placed on the s. 30 assessment is for the trial judge to decide. At this point, neither the evidence of Mr. Hurwitz or Dr. Szkiba-Day has been tested. At the same time, it is clear to me that in reaching the conclusion that Roxanna did not experience parental alienation, Mr. Hurwitz expressly considered Dr. Szkiba-Day’s opinion to the contrary.

51Mr. Hurwitz noted in the assessment that Dr. Szkiba-Day felt Robin was saying negative things about Vanessa to Roxanna and that she felt Roxanna may be alienated from Vanessa. Mr. Hurwitz indicated that Dr. Szkiba-Day observed that Roxanna had a lot of information about the parental conflict. He indicated that Dr. Szkiba-Day believed Robin’s anger towards Vanessa was picked up by Roxanna. Nevertheless, Mr. Hurwitz was of the view that Roxanna did not meet the clinical criteria for experiencing alienation.

52Although the evidence has not been tested, I find that Mr. Hurwitz’s findings are entitled to considerable weight at this interim stage. His conclusion that Vanessa’s estrangement is justified is supported by other objective evidence before me, particularly the Brayden Supervision notes. The alleged factual inaccuracies, even if I accept Vanessa’s position, are not so significant as to undermine the pith and substance of the assessment.

53The Brayden Supervision notes from December 2020 to May 23, 2021 show that Robin was very supportive of Roxanna having a relationship with Vanessa. He encouraged the visits. He took issue with visits being cut short by Roxanna and took it up with the supervisor.

54Roxanna told Mr. Hurwitz that Vanessa says things which upset her, tries to control her (for example, when Roxanna said she wanted to be a lawyer, Vanessa told her she should be an engineer), and that she is “mean” and “abusive”. Mr. Hurwitz observed that Roxanna’s demeanour would change when talking about Vanessa, and she would become sad. Roxanna explained that she does not call Vanessa “mom” because she is “not a mom”. When asked what a “real mom” would do, Roxanna said that a “real mom” would care about her, care about her feelings, but Vanessa does not listen and does not let her talk. Roxanna became sad and cried when talking about this. She told Mr. Hurwitz that she believes Vanessa does not like her and does not want her to be happy. She said she does not think Vanessa cares about her.

55The Brayden Supervision notes of the five visits in September and October 2021 reflect the same behaviours by Vanessa which Roxanna complained of months earlier. During those visits, Vanessa would bring up topics that are obviously upsetting to Roxanna, such as reunification counselling or living at or visiting the farm.

56Vanessa has more than once insisted that the parenting visits take place at the farm, even though she was informed by Miriam and Nancy that Roxanna does not wish to go there. Vanessa argues on this motion that Roxanna is not fearful of going there, but is “emotional” about it. Regardless, Roxanna does not want to go there. It makes her incredibly emotional. The Brayden Supervision notes show that Roxanna has been visibly distressed and physically ill at the prospect of going there. Yet Vanessa persisted. She persisted even though she had the Brayden Supervision notes.

57I recognize that the farm was the matrimonial home. I recognize that Roxanna lived there for many years with both parents and her brothers. However, since 2017 she has lived there only with Robin. It was her home, and it was abruptly taken from her along with her father. From her perspective, she has not had time to be there in that space, without Vanessa, since Robin died. Vanessa seems unable to see the importance of this, though it is readily apparent.

58The notes demonstrate that Vanessa frequently does not listen to Roxanna, but insists on pushing her own agenda. On a few occasions, Vanessa was insensitive to Roxanna’s needs and feelings. For example, knowing how emotionally-loaded the farm is to Roxanna, during a pottery class Vanessa insisted on telling a complete stranger about the farm and then invited the stranger to visit it, seemingly oblivious to Roxanna’s reaction.

59In his interviews with Roxanna, Mr. Hurwitz asked if she could have three wishes, what would they be. Roxanna said: (1) to get another dog, (2) to get a fish, and (3) to stay with Robin. Despite Roxanna asking Vanessa for her fish back more than once, Vanessa refused to return it unless Roxanna came to the farm.

60Most concerning is that Vanessa knows what Roxanna has said about her feelings, yet shows no sign of any effort to change her own behaviours. Instead, she describes Roxanna as “difficult” and “challenging”. Vanessa was provided with the s. 30 assessment and the Brayden Supervision notes. She was made aware of Roxanna’s feelings and concerns. The notes make it obvious what upsets Roxanna. Yet Vanessa persists in the behaviours. This leads me to conclude that Vanessa lacks insight into how her behaviour impacts Roxanna. Vanessa appears unable or unwilling to change or tailor her behaviour to meet Roxanna’s emotional and psychological needs at this time.

Dr. Fitzgerald’s Findings

61My conclusion that Vanessa lacks insight into how her behavior impacts Roxanna is confirmed by the findings of Dr. Daniel Fitzgerald, a psychologist, who conducted a psychological assessment of both Robin and Vanessa as part of the s. 30 assessment. His conclusions about Vanessa’s personality construct offered a lot of insights. Dr. Fitzgerald found that Vanessa “displays a tendency to be very distrustful and to have thoughts and feelings of persecution.” She has very strong dependency needs and feels that others are actively attempting to thwart and undermine her. She appears to have internalized a view of herself as incapable and inept when left to her own devices.

62Dr. Fitzgerald concluded that Vanessa “does not appear to have been able to develop a cohesive personality structure that could enable her to deal with intense emotions and to have relationships with others in a flexible and mutually satisfying manner.” Overall, her psychological profile suggests the presence of a dependent personality. She suffers from high levels of anxiety and can become overwhelmed by thoughts and experiences.

[63] With respect to parenting issues, Dr. Fitzgerald concluded: [Vanessa] does not have a broad and well-developed repertoire of parenting skills that she might use to address situations with children or adolescents at various states of development. It was difficult for her to describe how she might address a parent-child situation while taking into consideration the subject state of the child and the importance of the parent and having confident, authoritative and adaptive parenting skills. She seems to feel comfortable in her relationships with her two older sons. However, in describing her relationship with her daughter she appears to feel that she has a lack of options. She also seems to see her daughter as difficult and challenging.

64Dr. Fitzgerald recommended that Vanessa take a parenting course and engage in psychotherapy.

65I am cognizant that Dr. Fitzgerald has not been cross-examined on his findings, but on the evidence before me, his observations confirm the impression I formed having read the Brayden Supervision notes: Vanessa has difficulty listening to or relating well to Roxanna.

66While Vanessa states that she is studying psychology, and hopes to become a counsellor and employ art therapy, there is no indication in the evidence before me that Vanessa has any insight into the behaviours that cause Roxanna to react negatively to her. Nor is there an indication that Vanessa intends to take any parenting program.

Dr. Jean Szkiba-Day’s Evidence

67Vanessa argues that the s. 30 assessment is flawed and ought not be relied on. She sets out at length the factual discrepancies she takes issue with. Most significantly, she relies on an affidavit from Dr. Szkiba-Day which states that Mr. Hurwitz misreported what Dr. Szkiba-Day told him.

68Dr. Szkiba-Day became involved with this family during the parties’ marriage. She initially provided therapy to Vanessa’s sons in 2016. She then provided marriage counselling to Robin and Vanessa. In the fall of 2019, she was asked to do some reunification therapy with Vanessa and Roxanna. Dr. Szkiba-Day terminated the reunification therapy in February 2020. She felt that her intervention was not helping, and that Vanessa and Roxanna needed more intensified reunification therapy than she could provide. In her affidavit on this motion, Dr. Szkiba-Day indicated that she would now be prepared to resume because, with Robin gone, the dynamics would be different and Roxanna would no longer be in a “loyalty bind”.

69In her affidavit, dated September 2, 2021, Dr. Szkiba-Day states that, at times, she believed Robin made comments to Roxanna, either directly or indirectly which had the result of alienating Roxanna from Vanessa. She told Robin and Vanessa that she did not know if anyone else in their family or circle of friends had been making negative comments about Vanessa to Roxanna. Because Roxanna was using a lot of adult language to describe Vanessa’s previous divorce, it was “obvious” that someone had spoken to her about adult issues.

70Dr. Szkiba-Day also stated in her affidavit that her communications with Mr. Hurwitz are misrepresented: he states she was concerned that Vanessa might have borderline personality disorder, which she says is “the opposite of what was discussed.” Dr. Szkiba-Day explains, in para. 4 of her affidavit, that she told Mr. Hurwitz that Vanessa’s first husband had alleged she had a borderline personality disorder, which had been specifically disproven with psychological testing done at the time. Strangely, Dr. Szkiba-Day states in her affidavit that she advised Vanessa that the s. 30 assessment is, in any event, now “invalid” because Robin has died.

71I find that whether or not Mr. Hurwitz misstated or misapprehended what Dr. Szkiba-Day told him about the possibility of Vanessa having borderline personality disorder to be entirely irrelevant. Mr. Hurwitz had and relied on Dr. Fitzgerald’s psychological reports of both Vanessa and Robin in forming his opinions and recommendations. Dr. Fitzgerald’s report clearly sets out that Vanessa does not have borderline personality disorder.

72Dr. Szkiba-Day criticizes Mr. Hurwitz for overlooking that Vanessa presents as very child-oriented and positive with Roxanna, and for not exploring why Roxanna says negative things about her mother when she is away from her. She accused Dr. Fitzgerald of being “unbalanced” in his assessment because both Robin and Vanessa have average cognitive ability, but he expressed concern only about Vanessa.

73I disagree that Mr. Hurwitz failed to note that Vanessa is child-oriented, that her interactions with Roxanna were positive, or that he did not explore why Roxanna would say negative things about Vanessa in the circumstances. Mr. Hurwitz noted all of these things in his report and extensively investigated and assessed the reasons for Roxanna’s view before reaching the conclusion that there was no parental alienation in this case.

74I also disagree with Dr. Szkiba-Day’s characterization of Dr. Fitzgerald’s reports. He found that both Robin and Vanessa have average cognitive abilities: Robin in the 68th percentile and Vanessa in the 50th percentile. Significantly, he found that Vanessa struggles with memory impairment. The concerns expressed in his report were related to Vanessa’s poor working memory, which he said can impact her day to day functioning in different ways. Robin, on the other hand, had a strong working memory (87th percentile). Thus, Dr. Fitzgerald did not express similar concerns about Robin. I disagree with Dr. Szkiba-Day’s characterization of Dr. Fitzgerald’s reports as “unbalanced”.

75Dr. Szkiba-Day concluded that Roxanna responded well to Vanessa and that it was mainly when she transitioned to or from her father’s that Roxanna became negative. Based on this, Dr. Szkiba-Day concluded that Roxanna was in a “loyalty bind”. I have read the same supervision notes as Dr. Szkiba-Day and do not agree with her assessment. There were no issues during transitions. Roxanna appeared to transition well from Robin to the supervisor to Vanessa and back. The break down on May 2 and May 23, 2021 had nothing to do with transitions. To suggest that it was the result of Robin saying something negative to Roxanna is far-fetched.

76It appears that Dr. Szkiba-Day may not have had the benefit of the Brayden Supervision notes of the visits in September and October 2021. Her affidavits are dated September 2 and 23, 2021. The notes post-dating her affidavits demonstrate that Roxanna is not responding well to Vanessa. Her conclusion about Roxanna being in a “loyalty bind” is, in my view, not supported by the evidence before me. I do not accept her conclusions in this regard.

77Dr. Szkiba-Day states in her affidavit that it is important not just to listen to what Roxanna says, but to watch her actions as well. Applying this, I have very serious concerns: Roxanna has emotionally and physically reacted to actual and anticipated time with Vanessa. She has cried, said she feels sick to her stomach, been unable to sleep, and vomited when it was time to see her mother. Her demeanour changes when she is with Vanessa. She often becomes teary. This suggests that Roxanna experiences a great deal of anxiety and sadness either in anticipation of her time with Vanessa or during that time. In argument, counsel for Vanessa conceded that the visits were not going well.

[78] In her affidavit dated September 25, 2021, Dr. Szkiba-Day states that, after meeting with Roxanna for forty-five minutes on September 17, 2021, she is concerned that Roxanna “continues to be in a loyalty bind” with her new caregivers. In support of this conclusion, Dr. Szkiba-Day cited the following: a. Miriam brought her to the session and offered to go in with Roxanna, but Roxanna said she wanted to go in by herself. b. Roxanna showed some interest in the sound machine (which is used in therapy offices to ensure sessions are not overheard), whereas she had not shown interest in this machine on prior occasions. c. Roxanna declared she did not want to discuss her feelings with Dr. Szkiba-Day as this would “retraumatize” her but could not articulate why. d. Roxanna said she would not do individual therapy with Dr. Szkiba-Day but would do reconciliation with Vanessa.

79On this basis, Dr. Szkiba-Day concluded that Roxanna was in a “loyalty bind”. Given the peculiar wording in her affidavit, it is not clear whether she means that Roxanna’s “loyalty bind” is between Vanessa and Miriam, or between Dr. Szkiba-Day and Miriam. It appears that her affidavit says that Roxanna’s “loyalty bind” is between Dr. Szkiba-Day and Miriam.

80In any event, I do not accept the conclusions of Dr. Szkiba-Day that Roxanna is in a “loyalty bind”. Considering the evidentiary foundation for the opinion as set out in her affidavit (as above), the conclusion that there is a “loyalty bind” is speculative to say the least. There are any number of common sense reasons why Roxanna would respond as she did, none of which appear to have been considered by Dr. Szkiba-Day. In any event, it is not clear what exactly a “loyalty bind” is or why it would matter to my assessment of the best interests of this child if Roxanna were in a “loyalty bind” between Miriam and Dr. Szkiba-Day (as stated in the affidavit).

81Dr. Szkiba-Day’s earlier premise – that Roxanna was responding well to Vanessa but saying negative things about her – is no longer accurate. Roxanna is not responding well to Vanessa. Roxanna’s actions and words are congruent.

82It is not disputed that the Brayden Supervision notes from September and October 2021 reveal that parenting sessions are not going well. Roxanna distrusts Vanessa. She is angry at Vanessa. Roxanna at times resists the visits. She refuses to call Vanessa her mother, instead calling her “Vanessa”. Often, she refuses to hug Vanessa. She reacts negatively to certain things Vanessa says. She experiences stress and anxiety at the prospect of seeing Vanessa. On at least one occasion, she blamed Robin’s death on Vanessa, stating to her aunt that it was the stress of the litigation that killed him. She has also refused to attend at the farm because Vanessa is there.

83More importantly, an objective review of the supervision notes confirm that the reason Roxanna does not want parenting time with Vanessa is because of how Vanessa interacts with her. At times Vanessa does not listen to her. She is not attuned to her daughter. Sometimes, she is insensitive to her daughter’s feelings and tries to impose her wishes on Roxanna. While no parent should be held to a standard of perfection, it is difficult to deny that Roxanna’s views of her mother have some justification.

84Vanessa, for her part, fails to account for how her own conduct has negatively impacted the relationship. Instead, she blames others for Roxanna’s reaction to her, including Robin, Roxanna herself (insisting that she is “difficult” and “challenging”), various professionals, and now Miriam and Nancy.

85I find that, at this interim stage, allegations of parental alienation are unfounded.

Roxanna’s Views and Preferences

86Section 16(3)(e) of the Divorce Act and s. 24(3)(e) of the CLRA set out that a child’s views and preferences may be considered in determining the child’s best interests. These views are to be considered in terms of the child’s age and maturity. As a 12 year old, Roxanna’s views are an important factor, but are not determinative in my assessment of best interests: Bamford v. Peckham, 2021 ONSC 6208, at para. 59. They are but one piece of evidence for the court to consider: Children’s Aid Society of Toronto v. S.F., 2021 ONCJ 287, at para. 43. However, when children are young adolescents and their views are independently held and consistent, their views may carry great weight: Martin v. Bonnell, 2021 ONSC 7755, at paras. 36-39.

87Since Robin’s death, Roxanna has consistently expressed by words and actions that she finds contact with Vanessa difficult. The Brayden Supervision notes reflect what Mr. Hurwitz observed: Roxanna often reacts emotionally and physically to Vanessa.

88Since Robin’s death, Roxanna has made clear that she wants to stay with Miriam, does not want to live with Vanessa, and wants the parenting time with Vanessa to be reduced from three hours to two or two and a half hours per session.

89According to Miriam, in the days following Robin’s death, Roxanna was adamant that she did not want to go to the farm. In her affidavit, Miriam described Roxanna’s reaction to the news of her father’s passing as “inconsolable sadness at the loss of her father and paralyzing fear that her mother would take her to live with her.” Roxanna asked for her father’s clothing and cologne so that she could smell him. Nancy and her son went to the farm on August 17, 2021 with the intention of removing some of Roxanna’s bedroom furniture and her pet fish, but Vanessa was already at the farm with the police. Since then, Vanessa has refused to return Roxanna’s belongings and pet fish.

90The Brayden Supervision notes of October 3, 2021 show that when Roxanna asked for her blue bedsheets and other items Vanessa said at first that she returned them, and then that she did not know where those items where. Roxanna repeatedly asked Vanessa for her fish back. Vanessa ignored the question for a while. At one point she said that the fish was “too big”. When Roxanna pressed her, saying “Do you not care about how I feel? I want my fish back”, Vanessa offered non-responsive answers. At one point she said Roxanna can come to the farm and look after it there. When Roxanna persisted in asking for the fish, Vanessa finally replied: “You aren’t ready.”

91The Brayden Supervision notes confirm Miriam’s evidence that Roxanna initially had “very very strong resistance” to seeing or talking to her mother. She had bouts of sobbing and vomiting.

92Although Roxanna expressed a desire to go back to her home to grieve her father, she has refused to go if Vanessa is there. Vanessa has refused to leave the farm. She moved into that home two days after Robin died, despite the fact that she had not lived there since 2017. In the August 16, 2021 letter advising Vanessa of Robin’s death, counsel cautioned that the farm remains Roxanna’s home and it would be “ill advised” for Vanessa to attend there. Vanessa moved in anyway. At the time of the hearing of these motions, Roxanna had not been home since she left for that sleep-over on the day before her father died. None of this conduct appears to have been motivated by Roxanna’s best interests at a time of inconsolable grief. Vanessa preferred her interests in staying at the farm over those of her child.

93Roxanna wants to stay with her aunt Miriam. She enjoys the closeness of her big paternal extended family. She has stability and routine. Miriam is also capable and supports Roxanna emotionally. Miriam understands the child’s grieving process, having experienced the loss of her father when she was Roxanna’s age and only too recently the terrible loss of her own son.

94While more insight into Roxanna’s views and preferences will be provided in the Voice of the Child Report that has been ordered, I find that Roxanna’s views and preferences are entitled to considerable weight on this motion. She is 12 years old. By all reports, she is an articulate and mature child. Having regard to the supervision notes, and the notes of her meeting with Dr. Szkiba-Day, Roxanna struck me as having a mature self-awareness and an ability to communicate her needs. I have no hesitation in finding that she can express how she feels and what she wants. I do not accept that her views and preferences are the product of alienation. Her views and preferences are entitled to considerable weight in determining what is and what is not in her best interest.

Suitability of Miriam as a Caregiver

95Vanessa claims that Miriam had no role in Roxanna’s life prior to Robin’s death. I find that while Miriam had no real role in Roxanna’s life while Vanessa and Robin were married, for the past four years (nearly a third of Roxanna’s life), both Miriam and Nancy have been a regular part of Roxanna’s life.

96In their affidavits, Miriam and Carol acknowledge that during the parties’ marriage, Robin had a strained relationship with his extended family, including all his sisters. Robin told Mr. Hurwitz during the s. 30 assessment that this was due, in large part, to Vanessa not liking his sisters. Based on this evidence, I am satisfied that, after Vanessa and Robin separated, Robin re-established the relationship with his family.

97Text messages in evidence before me between Roxanna and Miriam, as well as the Brayden Supervision notes, show that Roxanna has a secure, close, and loving relationship with Miriam. She relies on and looks to Miriam as a safe and caring adult.

98I accept Miriam’s evidence that there was no grand design, as suggested by Vanessa, to become parents to Roxanna – Robin’s death was completely unexpected. I do not agree with Vanessa’s submission that the court has insufficient information about Miriam or Nancy: the information about them contained in their affidavits is detailed and thorough.

99Vanessa argues that Miriam and Nancy deliberately withheld Roxanna from her and thwarted her efforts to see her. I reject these claims. I find that the Shea sisters did not interfere with Vanessa’s parenting time: at the time of Robin’s death, there had been no contact between Vanessa and Roxanna for months. I accept the evidence that when Robin died, Roxanna was distraught at his loss and terrified that Vanessa would take her. Considering this, Miriam and Nancy proceeded cautiously, but reasonably quickly. It would have been unconscionable to force Roxanna to go to Vanessa in that state.

100Correspondence in evidence before me shows that Vanessa was less than cooperative or flexible in scheduling visits, while Miriam and Nancy tried to manage various issues around Roxanna’s needs. The time from Robin’s passing until the hearing of this motion was chaotic for the Shea family, to say the least. It included suddenly taking on the care of a traumatized child. They asked Vanessa for time to sort things out, but Vanessa immediately pressed her agenda. By August 17, 2021, she had moved into the farm and demanded the “return” of Roxanna, even though she had not even seen her child in months.

101In any event, I find that in the few weeks after Robin’s death, the Shea sisters managed the situation as best as they could, without any deliberate intention to “withhold” Roxanna from Vanessa. Within a month, supervised parenting time had been re-established.

102Vanessa alleges that Miriam and Nancy are motivated by greed. She states in her affidavit that she “needs to protect” Roxanna “from being their meal ticket.”

103On the evidence before me, I am satisfied that Miriam and the other Shea sisters are not attempting to alienate Roxanna from her mother. The suggestions that they grabbed Roxanna in order to control her and gain access to whatever money Roxanna might inherit has no foundation in the evidence whatsoever. To the contrary, the evidence establishes that Roxanna enjoyed a positive and close relationship with Miriam and Nancy prior to Robin’s death. When she could not contact Robin, they are the ones to whom she reached out. I agree with Miriam’s characterization that Vanessa’s claim of them using Roxanna as their “meal ticket” is “vile” and “baseless”.

104I am satisfied that Miriam believes that Roxanna should have a relationship with her mother and would encourage that relationship. She and Nancy worked with Brayden Supervision to support supervised parenting visits even when Roxanna was extremely resistant to them. Miriam would also support a relationship with Roxanna’s stepbrothers, Max and Alex, who Roxanna appears to enjoy.

105Miriam and Nancy reached out to Dr. Ricciuti for therapy for Roxanna shortly after Robin’s death. This was entirely appropriate. I am satisfied that Miriam is supportive of therapy for Roxanna and makes good decisions in this regard. Miriam has her own familiarity with tragedy, sorrow, and death. Her son was murdered in 2020. She also lost her father when she was 11 or 12 years old, the same age as Roxanna when Robin died.

106In all of the circumstances, I find that Miriam is a suitable caregiver to Roxanna. In the interim, it is in Roxanna’s best interests to remain in Miriam’s primary care and for Miriam to make daily decisions about her care, for her to attend the same school, and see her same psychologist. She needs the opportunity to stabilize all the emotions and volatility in her life. This includes clear rules around contact with her mother. I find that Roxanna’s parenting time with Vanessa should be no more than twice a week, for no more than three hours per visit, with supervision.

Roxanna’s Attendance at School

107In support of her position that Miriam is not a suitable caregiver, Vanessa relied on the fact that, as of October 22, 2021, Roxanna had missed 12 days of school and was late 7 times. Vanessa argued that Roxanna has special needs, and that missing school is not good for her.

108I accept that missing school is problematic and that it is going to be difficult for Roxanna to catch up. At the same time, the school year started less than a month after Robin died. It is not unreasonable or unexpected that Roxanna would miss school or be late in those circumstances. She is grieving. Vanessa gave no consideration to this in the arguments she made before me. To her, it is as if Robin’s passing is a non-event for Roxanna. This is most unfortunate and telling.

109It is cruel to insist that Roxanna go to school regardless of how she is suffering from grief. Her missing school or being late for school is not a sign of poor parenting by Miriam. To the contrary, it shows that Miriam is sensitive and responsive to Roxanna’s needs day to day.

110I am satisfied that both Miriam and Nancy support and promote Roxanna’s attendance at school. They made the school aware of Robin’s passing and had consistent and appropriate contact with the school. Contrary to Vanessa’s claim that they enrolled Roxanna in school without consulting with her, emails in evidence before me show that they sought Vanessa’s consent as early as August 29, 2021. Roxanna did not need to be “enrolled” at the school – it is the same school she has been going to since grade one. It is only ten minutes from Miriam’s home, and Roxanna enjoys social support there including friends, teachers, and access to the school’s social worker. All of the decisions regarding extra-curricular activities, social events, and other events made by Miriam had Roxanna’s best interests in mind. I have no concerns in this regard.

111In conclusion, at this interim stage, it is in Roxanna’s best interests to primarily reside with and be under the care of her aunt Miriam. It is also in her best interest to remain at the school where she is accustomed and continue in individual therapy with Dr. Ricciuti.

Reunification Therapy

112Vanessa argued for intensive reunification therapy to commence immediately with Lourdes Geraldo. Ms. Geraldo was one of the therapists recommended by Mr. Hurwitz. The intensive reunification therapy would involve Ms. Geraldo, or one of her associates, having a presence in the home for extended periods of time to ensure that parent and child are supported. Vanessa argues that this is what is necessary to repair the mother-daughter relationship.

113I note that reunification counselling was previously commenced in 2021, with Dr. Saunders. This was a specialist selected by the parties. In a March 1, 2021 Order, Justice Kurz ordered the parties to cooperate with Dr. Saunders regarding any changes to Vanessa’s parenting times. Vanessa claims that the reunification therapy failed because it was by Zoom and because Dr. Saunders refused to make recommendations regarding parenting time to the court. I do not accept this.

114The emails in evidence before me establish that Dr. Saunders was prepared to conduct the reunification therapy, but not “assess where the child should be and/or advise the court on matters of custody and access.” This seems entirely reasonable and not a reason why reunification therapy could not have proceeded with Dr. Saunders. The court did not order this therapy to obtain further advise or recommendations regarding parenting time. The s. 30 assessment served that purpose. Vanessa just did not like it.

115The emails also show that Vanessa wanted to have the therapy sessions in person at her home in March 2021, whereas Robin wanted them to proceed by Zoom. Zoom would have been a good way to start, especially during the pandemic. Ultimately, it seems Vanessa refused to participate at all.

116Despite this past failed attempt, I agree that intensive reunification therapy of the sort provided by Ms. Geraldo or Dr. Saunders could be helpful at some point. I disagree that now is the time to do it.

117None of the professionals whose evidence is before me recommend that reunification therapy should take priority over Roxanna’s immediate need to heal from the loss of her father. Indeed, even Dr. Szkiba-Day states in her affidavit that it should wait until Roxanna is “settled”.

118Since Robin’s passing, Roxanna has clearly suffered. She is grieving his loss. Robin was her primary caregiver, and it is clear from all the evidence that she was exceptionally close to him. He was her rock. This motion was heard just two months after he died. In my view, forcing intensive reunification therapy on this grieving child at this time is simply too soon.

119Since May 2021, Roxanna has been engaged in therapy with Dr. Christina Ricciuti. In Dr. Ricciuti’s letter to the parties dated July 2, 2021, she confirmed she had met with Robin and Vanessa, met with Roxanna four times, and reviewed the s. 30 assessment and the Brayden Supervision notes up to that date.

120In her letter, with regard to the visits on February 7, May 2 and 23, 2021, Dr. Ricciuti states that those visits were extremely difficult for Roxanna. Dr. Ricciuti observed those sessions ended early and not on a positive note. Roxanna was significantly and emotionally affected, especially during the last session when Vanessa left her on a park bench after only 13 minutes. Dr. Ricciuti, at that time, recommended that parenting sessions be temporarily reduced in duration to one to two hours, and then gradually increased as the visits become more successful. Dr. Ricciuti recommended Dr. Barbara-Jo Fiddler to support Vanessa in how to heal her relationship with Roxanna and offer her guidance and suggestions in her future interactions with Roxanna.

121After Robin’s death, Roxanna continued individual therapy with Dr. Ricciuti. The Brayden Supervision notes describe how difficult Roxanna found that therapy. After one of those therapy sessions, Roxanna was observed by the supervisor to be exhausted and drained. She told the supervisor that her day and therapy were “hard”.

122Before Robin’s death, Dr. Ricciuti observed that “Roxanna is an emotionally vulnerable young pre-adolescent, and efforts around [reunification] must not be coercive or forceful, or remove Roxanna’s ability to have a voice in the process.” This makes sense to me. After Robin’s death, those concerns are intensified.

123In her affidavit, Lourdes Geraldo, states she is willing and able to provide intensive reunification therapy to Vanessa and Roxanna if Roxanna is placed in Vanessa’s care. She states that, while there could be distress for Roxanna in making a transition to Vanessa’s care, it is often brief as opposed to more prolonged distress in making a gradual transition. I accept this to be the case where a transition from one suitable parent to another suitable parent is made by a child. However, I am unable to conclude that Vanessa is a suitable caregiver for Roxanna at this time or that living with her is in Roxanna’s the best interests.

124I therefore decline to order intensive reunification therapy at this time. Intensive reunification therapy should only be undertaken once Dr. Ricciuti recommends it.

Conclusions

125Addressing Roxanna’s best interests at this stage, shortly following the sudden death of her father, required a delicate balancing of her various needs. On the one hand, she needs stability, peace, and time to grieve and heal. On the other hand, she also needs an opportunity to repair her relationship with her mother. In the end, I conclude that her immediate needs take priority over the difficult task of repairing her relationship with Vanessa. Roxanna has a place with her aunt, where she feels safe, loved, and secure. Until further court order, that is where it is in Roxanna’s best interests to stay.

126I am also of the view that reunification therapy must wait. Priority must be given to Roxanna’s individual healing, before making the heavy efforts required by reunification therapy. Further, the repair of the mother-daughter relationship is not likely until Vanessa takes responsibility for her role in the damage caused and obtains the assistance recommended to her in the s. 30 assessment and by Dr. Ricciuti.

127For those reasons, I conclude that the Orders sought by Vanessa are inappropriate at this time. To take a grieving child, traumatized by the sudden death of her primary parent, and force her to have primary residence with the other parent, whom she believes to be untrustworthy, abusive, and dishonest, and from whom she has been estranged for some time, is not in that child’s best interests. Vanessa is unable to prioritize Roxanna’s needs over her own interests. It is not in Roxanna’s best interests to live with Vanessa or to have Vanessa make day to day decisions for her at this time.

128Additionally, Roxanna would benefit from having her personal belongings and special items returned to her from the farm. This includes her fish and any other personal items that she wants.

129If it is recommended by Dr. Ricciuti or requested by Roxanna, Roxanna should be permitted to attend at the farm on her own, without Vanessa present. This may assist her in her grieving process.

130Last, but not least, it is clear from the supervision notes that Roxanna enjoys spending times with her brothers Max and Alex. At times, they appear to be closely bonded. It appears, however, that her time with them has been limited. I have the impression that Roxanna only sees Max and Alex when she has supervised visits with Vanessa. There does not appear to be any real reason for this limitation. If Vanessa was concerned about the bonds between these siblings, one would think she would encourage contact between them without her presence or interference.

131The relationship between Roxanna and her brothers should be encouraged. Having a strong relationship with her brothers is in Roxanna’s best interests. To this end, there shall be an Order that all parties encourage Roxanna to spend time and communicate with Max and Alex and that she have as much time with her brothers as she wishes, in the absence of Vanessa.

Additional Orders

[132] In addition to the Orders made on October 27, 2021, the following Order shall issue: a. Vanessa shall permit Roxanna to visit the farm without Vanessa being present. Vanessa shall vacate the property for as long as Roxanna needs to be there. The supervisor or Miriam shall remain outside the house during Roxanna’s visit(s) unless otherwise agreed to by the parties; b. Vanessa shall return to Roxanna any of her personal items remaining at the farm, including Roxanna’s fish, forthwith; c. The parties shall facilitate and encourage Roxanna’s relationship with her brothers Max and Alex. In particular, Roxanna should be permitted to spend as much time as she wishes with her brothers without Vanessa’s presence; d. Vanessa shall not discuss therapy or reunification therapy with Roxanna until such time as reunification therapy commences or a discussion of reunification therapy is approved by Roxanna’s therapist, Dr. Christina Ricciuti.

Voice of the Child Report

133With some hesitation, in the Endorsement dated October 27, 2021, I made an Order requesting a Voice of the Child Report. My hesitation lay in that Roxanna has been subjected to so much intervention and so many interviews. In my view, she has clearly expressed her views and preferences throughout. She expressed her views and preferences during the s. 30 assessment, supervised parenting times to the supervisor, therapy to various professionals, as well as directly to Vanessa.

134Nevertheless, I concluded that it would be helpful to have a comprehensive formal report that deals exclusively with Roxanna’s views and preferences since Robin’s death. It is important that Roxanna feel that she has had a voice in these proceedings. It is equally important that every effort be made for Vanessa to really hear what Roxanna has to say. The s. 30 assessment pre-dates Robin’s death and a Voice of the Child report will be of assistance to the court in determining Roxanna’s views and preferences since this major change in her life.

Costs

135Miriam seeks partial indemnity costs of these two motions in the amount of $7,000. Vanessa claimed partial indemnity costs of $30,000.

136Vanessa submitted that she should not have to pay costs if she is not successful on these motions because Miriam acted unreasonably by assuming care of Roxanna without a court Order. I disagree. Miriam and Nancy stepped into a void in Roxanna’s life created by Robin’s sudden death. I accept their explanation for the delay in pursuing the court process. They were dealing with the death and funeral arrangements.

137Costs are appropriate. As the successful party, Miriam is presumptively entitled to costs. In my view, costs of $7,000 are more than fair and reasonable in the circumstances. Vanessa shall pay costs of $7,000 to Miriam forthwith.

Chozik J.